PLASTERTECH SYSTEMS LIMITED v AUCKLAND COUNCIL [2019] NZCA 227

PLASTERTECH SYSTEMS LIMITED v AUCKLAND COUNCIL [2019] NZCA 227 [17 June 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA47/2019[2019] NZCA 227BETWEEN PLASTERTECH SYSTEMS LIMITEDFirst ApplicantSIMPLE CONSTRUCTION LIMITEDSecond ApplicantAND AUCKLAND COUNCILRespondentCourt: Collins, Peters and Mander JJCounsel: S Moore for ApplicantsD J Collins and A R Govind for RespondentJudgment:(On the papers)17 June 2019 at 3.00 pmJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] Plastertech Systems Ltd and Simple Construction Ltd (the Companies) seekleave to appeal a decision of Palmer J that building work carried out by them requireda consent under the Building Act 2004 (the Act).1 Leave is required because this would1 Plastertech Systems Ltd v Auckland Council [2018] NZHC 3400.be a second appeal, the decision of Palmer J being itself an appeal from a decision tothe same effect reached by Judge Collins in the District Court.2Background[2] In 2014, building work was carried out by the Companies which involvedthe removal of a large window, making the surround watertight, and replacingthe window, framing and cladding, including two double studs adjacent to the window.The Auckland City Council (the Council) prosecuted the Companies for carrying outthe building work without a consent. The Companies took issue that a buildingconsent was required. They maintained the work involved repair and maintenancewhich is exempt from requiring a consent.The Building Act 2004[3] A person "must not carry out any building work except in accordance witha building consent" and will commit an offence if he or she does so.3 However,a building consent is not required for repair, maintenance or replacement workdescribed in cl 1 of sch 1 to the Act:1 General repair, maintenance, and replacement(1) The repair and maintenance of any component or assemblyincorporated in or associated with a building, provided thatcomparable materials are used.(2) Replacement of any component or assembly incorporated in orassociated with a building, provided that—(a) a comparable component or assembly is used; and(b) the replacement is in the same position.[4] The Council points to sub-cl (3), which provides exceptions to this exemptionas follows:(3) However, subclauses (1) and (2) do not include the following buildingwork:2 Auckland City Council v Lee [2017] NZDC 13089.3 Building Act 2004, s 40....(b) complete or substantial replacement of any component orassembly contributing to the building's structural behaviouror fire-safety properties; or(c) repair or replacement (other than maintenance) of anycomponent or assembly that has failed to satisfythe provisions of the building code for durability, forexample, through a failure to comply with the externalmoisture requirements of the building code; or(Emphasis added).[5] The relevant provision of the building code relating to durability is cl B2.3.1of sch 1 to the Building Regulations 1992 (the Code) which provides:B2.3.1 Building elements must, with only normal maintenance, continue tosatisfy the performance requirements of this code for the lesser ofthe specified intended life of the building, if stated, or:(a) the life of the building being not less than 50 years, if:(i) those building elements (including floors, walls, andfixings) provide structural stability to the building, or(ii) those building elements are difficult to access orreplace, or(iii) failure of those building elements to comply withthe building code would go undetected during bothnormal use and maintenance of the building.(Emphasis added).Clause A2 defines "building element" to mean:... [A]ny structural or non-structural component and assembly incorporatedinto or associated with a building. Included are fixtures, services, drains,permanent mechanical installations for access, glazing, partitions, ceilings andtemporary supports.Determinations that a building consent was required[6] In the District Court, Judge Collins found that the double studs contributed tothe structural stability of the building and were an integral part of a wall.4 Becausethe durability requirement was 50 years, the component required to be replaced hadfailed to satisfy the Code's provisions for durability. There was no dispute thatthe double studs had not endured for 50 years since their installation. It followedthat the exemption for general repair, maintenance and replacement work did not applybecause the work undertaken was of the type described in cl 1(3)(c) of sch 1 to the Act.[7] In the High Court, Palmer J, after reviewing the expert evidence, foundthe double studs provided structural stability to the building and that, as a result,the durability requirement was 50 years.5 On the basis of the evidence adduced atthe trial, Palmer J found he had no reason to disagree with Judge Collins' conclusion.He also found that a double stud was difficult to access or replace and not"moderately" so, and that its failure would not be easily detected during normalmaintenance.6 He therefore rejected that the building durability requirement wasanything less than 50 years.7[8] Palmer J concluded that the work involved the replacement of a buildingcomponent that failed to satisfy the Code for durability for the reason explicitlyprovided as an example in cl 1(3)(c), namely a failure to comply with the externalmoisture requirements of the Code.8 It followed that a consent was required.Analysis[9] Leave will not be granted for a second appeal unless it involves a matter ofgeneral or public importance, or a miscarriage of justice may have occurred or may4 Auckland City Council v Lee, above n 2, at [25].5 Plastertech Systems Ltd v Auckland Council, above n 1, at [17]–[18].6 At [19].7 Clause B2.3.1(b) provides that the durability requirement will be one of only 15 years if:(i) those building elements (including the building envelope, exposed plumbing in the subfloorspace, and in-built chimneys and flues) are moderately difficult to access or replace, or(ii) failure of those building elements to comply with the building code would go undetectedduring normal use of the building, but would be easily detected during normal maintenance.8 Plastertech Systems Ltd v Auckland Council, above n 1, at [19].occur unless the appeal is heard.9 The proposed appeal involves the High Court'sassessment of the application of an exception to the exemption otherwise provided bythe Act to allow general repair, maintenance and replacement work to be undertakenwithout a consent.[10] Both Judge Collins and Palmer J's decisions regarding the application ofthe exception rested on their review and analysis of evidence from four expertwitnesses which led them to conclude that the double studs were an integral part ofthe wall that provided structural stability and had been installed in circumstanceswhere there had been a durability failure due to water ingress. As a result, the workrequired to replace that component required a consent.[11] On appeal to this Court, the Companies relied upon several Ministry ofBusiness, Innovation and Employment (MBIE) determinations relating tothe interpretation of the term "complete or substantial replacement" as those words areused in cl 1(3)(a) and (b) of sch 1 to the Act. The Council, during the hearing ofthe appeal to the High Court, conceded that cl 1(3)(b) did not apply and that theremoval of the double studs did not constitute complete or substantial replacement ofthe whole component of the wall system.10 However, Palmer J's conclusion thata building consent was required was based on the application of cl 1(3)(c) ofthe schedule. Those determinations are not therefore of direct relevance to the issueproposed to be determined on a second appeal.[12] Establishing a miscarriage of justice requires the identification of an errorwhich has resulted in a real risk that the outcome of the trial was affected. The errorsought to be relied upon by the Companies in the present application centres onPalmer J's assessment of the expert evidence called before the District Court.The Companies sought to rely on parts of some of the experts' evidence which couldbe interpreted as suggesting that the works were not structural in nature. However, asnoted, Palmer J's decision rested on the application of cl 1(3)(c) which related tothe repair or replacement of a component that had failed to satisfy the provisions ofthe Code for durability, and which provided structural stability to the building.9 Criminal Procedure Act 2011, s 237(2).10 Plastertech Systems Ltd v Auckland Council, above n 1, at [14].[13] The qualifications placed by some of the experts on the extent of the structuralsupport provided by the studs did not prevent Palmer J from coming to the factualconclusions he reached, nor did this evidence when combined with the balance ofthe expert opinion prevent the Judge from concluding that the building elementprovided structural stability as that term is referred to in cl B2.3.1(a)(i) of the Code.Furthermore, we do not consider those findings are necessarily inconsistent withthe MBIE determinations which relate to the application of cl 1(3)(b), which was notrelied upon by Palmer J in upholding the Companies' convictions.[14] We do not consider the judgment has wider application other than tothe specific circumstances of the present case. As acknowledged by the Council,Palmer J's judgment is not authority for the proposition that a consent will be requiredfor all window maintenance work. The decision that Judge Collins was correct to findthat the double studs provided structural stability to the building was based entirely onthe expert evidence called in this particular case.Decision[15] For these reasons, we conclude that the case does not raise a question ofsufficient general public importance to merit a second appeal. Nor do we considerthere has been any miscarriage of justice.Result[16] The application for leave to appeal is declined.Solicitors:Ong & Partners, Auckland for ApplicantsAuckland Council – Legal Services, Auckland for Respondent